AMENDMENTS REGULATING BAR-ADVERTISING

• Decision Date: 17 December 1999
• Docket Number: No. 92,297.,92,297.
• Citation: 762 So.2d 392
• Parties: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR-ADVERTISING RULES.
• Court: Florida Supreme Court

762 So.2d 392

AMENDMENTS TO RULES REGULATING THE FLORIDA BAR-ADVERTISING RULES.

No. 92,297.

Supreme Court of Florida.

December 17, 1999.

Edith G. Osman, President, The Florida Bar, Miami, Florida, Howard C. Coker, Past-president, The Florida Bar, Jacksonville, Florida, John F. Harkness, Jr., Executive Director, Paul F. Hill, General Counsel and Elizabeth Clark Tarbert, Ethics Director, The Florida Bar, Tallahassee, Florida; Cynthia A. Everett, Chair, Rules Committee, Miami, Florida; Benjamin H. Hill, III, Chair, Joint Presidential Task Force on Advertising, Tampa, Florida; Timothy P. Chinaris, Jacksonville, Florida; C. Rufus Pennington, III of Margol & Pennington, Jacksonville, Florida; and Barry Richard of Greenberg, Traurig, P.A., Tallahassee, Florida, and Benjamin H. Hill, III of Hill, Ward & Henderson, Tampa, Florida, on behalf of The Florida Bar, for Petitioner.

Wilson Jerry Foster, Tallahassee, Florida; F. Wallace Pope, Jr. of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, Clearwater, Florida, on behalf of Leonard A. McCue & Associates d/b/a "Q Auto & Injury Attorneys"; Mark S. Gold of Gold & Associates, d/b/a The Ticket Clinic, Fort Lauderdale, Florida; W.F. "Casey" Ebsary, Jr., Tampa, Florida, on behalf of Lawgroup, P.A.; H. Louis Sirkin and Laura A. Abrams of Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, on behalf of The Debt Relief Law Center, Feinberg, Isaak & Smith, Attorneys-at-Law; George K. Rahdert and Alison M. Steele of Rahdert, Anderson, McGowan & Steele, St. Petersburg, Florida, on behalf of Nursing Home Abuse Law Center, Inc.; C.L. Darrow, General Counsel, San Ramon, California, and Bruce S. Rogow, Fort Lauderdale, Florida, on behalf of R.W. Lynch Co., Inc.; Howard W. Weber, Tampa, Florida, on behalf of Government Employees Insurance Company; Chandler R. Finley of Finley & Associates, P.A., West Palm Beach, Florida; Richard N. Friedman, Miami, Florida; and David J. Kingsley of Kingsley & Kingsley, Plantation, Florida, Responding.

CORRECTED OPINION

PER CURIAM.

The Florida Bar has petitioned this Court to amend the Rules Regulating The Florida Bar relating to attorney advertising. Notice of the proposed amendments was published in The Florida Bar News, and this Court has received a number of comments in response. We have jurisdiction. See art. V, § 15, Fla. Const.

Based in large part upon recommendations from The Florida Bar's Joint Presidential Advertising Task Force (Task Force), the Bar has proposed creating rules 3-1.3 (Lawyers Admitted in Jurisdictions Other Than Florida) and 15-1.2 (Applicability), both of which relate to this Court's disciplinary authority over non-Florida attorneys who solicit or advertise for legal employment in Florida. The remainder of the Bar's proposed amendments pertain to a comprehensive "overhaul" of subchapter 4-7 (Information About Legal Services).¹ We have received comments and held oral argument on the Bar's petition. We here discuss some of the proposed changes. We follow this opinion with an appendix which includes changes to the rules which we hereby adopt.

Proposed Rule 3-1.3; Rule 15-1.2

In its petition, the Bar proposes rule 3-1.3 (Lawyers Admitted in Jurisdictions Other Than Florida), a new rule which provides in pertinent part that "lawyers, whether or not admitted to practice law in Florida, who solicit or advertise for legal employment in Florida or who target solicitations or advertisements for legal employment at Florida residents ... must do so only in accordance with the applicable provisions of these Rules Regulating The Florida Bar." (Emphasis added.) Proposed rule 15-1.2 (Applicability) concomitantly subjects such lawyers to this Court's advertising rules and procedures if they "disseminate advertisements within Florida or target advertisements at Florida residents." The Bar advises that these proposed rules stem directly from the offensive and improper practices of some non-Florida attorneys who converged on the survivors of those killed in the ValuJet airplane crash in the Everglades in May of 1996.

We deny the adoption of these proposed rules, as they essentially treat lawyers admitted in other jurisdictions like members of The Florida Bar for the limited purpose of subjecting them to the Rules Regulating The Florida Bar regarding solicitation and advertising. We find the proposed rules unnecessary. Out-of-state lawyers are not lawyers who are subject to the Rules Regulating the Florida Bar;² rather, they are "nonlawyers" subject to chapter 10 unlicensed practice of law charges if they, among other things, engage in improper solicitation or advertising in Florida.

Specifically, chapter 10 of the Rules Regulating the Florida Bar (Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law), provides that "[p]ursuant to the provisions of article V, section 15, of the Florida Constitution, the Supreme Court of Florida has inherent jurisdiction to prohibit the unlicensed practice of law" by nonlawyers. R. Regulating Fla. Bar 10-1.1 (Jurisdiction); see Florida Bar v. Schramek, 616 So.2d 979, 982 (Fla. 1993)

(rejecting nonlawyer's argument that this Court's jurisdiction to regulate the practice of law extends only to licensed attorneys); Florida Bar v. Moses, 380 So.2d 412, 417 (Fla.1980) ("Inherent in our supervisory power is the authority to prohibit the unauthorized practice of law."). Chapter 10 explicitly defines "nonlawyer or nonattorney" as "an individual who is not a member of The Florida Bar ... [including] lawyers admitted in other jurisdictions." R. Regulating Fla. Bar 10-2.1(b) (Nonlawyer or Nonattorney) (emphasis added); cf. Preamble to ch. 4, R. Regulating Fla. Bar (A Lawyer's Responsibilities) ("`Lawyer' denotes a person who is a member of The Florida Bar or otherwise authorized to practice in any court of the State of Florida."). Chapter 10 further defines the "unlicensed practice of law" as "the practice of law, as prohibited by statute,[³] court rule,[⁴] and case law of the State of Florida." R. Regulating Fla. Bar 10-2.1(a) (Unlicensed Practice of Law).

Our case law is clear that improper solicitation or advertising in Florida by lawyers admitted in other jurisdictions is prohibited as the unlicensed practice of law. For example, in Florida Bar v. Kaiser, 397 So.2d 1132, 1133 (Fla.1981), the referee found a New York attorney guilty of the unauthorized practice of law for implying in telephone-book, television, and newspaper advertising that he was authorized to practice law in Florida. In concluding that the referee's findings of fact regarding the unauthorized practice of law were justified, this Court held:

The record supports the referee's conclusion that [the New York attorney at issue] knew that his advertisements created the impression that he was authorized to practice in Florida on his own, and did not meet the requirements of our most recent pronouncement with respect to the interstate practice of law. See The Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978)

.[⁵]

. . . .

Accordingly [the New York attorney at issue] is hereby enjoined from any advertising by newspaper, television or otherwise that would tend to mislead the public into believing he is a member of The Florida Bar or authorized to practice in this state....

Kaiser, 397 So.2d at 1133-34; see also Florida Bar v. Tate, 552 So.2d 1106, 1107 (Fla.1989)

(enjoining Pennsylvania attorney from representing that he was a member of The Florida Bar; from utilizing any cards, letterhead, or other written material identifying him as attorney at law without otherwise specifying that he was only admitted in Pennsylvania; and from otherwise engaging in the practice of law in Florida); Florida Bar v. Dale, 496 So.2d 813, 815 (Fla.1986) (enjoining Mississippi lawyer from impliedly or expressly holding himself out as licensed to practice law in Florida or from describing himself as a lawyer or attorney, and directing him to remove all indicia of his status as a lawyer from public view in his title company offices). We also call attention to our decision in Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla.1995), which rendered void a contingency fee agreement entered into for pursuit of a claim in Florida by an outof-state attorney engaged in the unauthorized practice of law.

Additionally, of course, such lawyers remain subject to the disciplinary authority of the jurisdictions in which they have been admitted. As succinctly stated in the comment to Rule Regulating The Florida Bar 4-8.5 (Jurisdiction), "In modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice." (Emphasis added.) We accordingly reject proposed rules 3-1.3 and 15-1.2, and suggest that the Bar instead develop and submit for approval by this Court proposed amendments amplifying chapter 10 and the rules concerning the unlicensed practice of law in regard to solicitation and advertising by lawyers admitted in other jurisdictions.

Proposed Subchapter Rule 4-7

The Bar has proposed substantial revisions to subchapter 4-7 in the form of both amendments to and a reorganization of the rules thereunder. We generally accept the proposed amendments and reorganization except where we specifically reject the proposed changes.

Our decision as to the rules pertaining to advertising must be within the boundaries of multiple United States Supreme Court decisions on these issues. Our decision is our determination as to the limits of constitutional regulation absent a change in the analysis of the United States Constitution by the United States Supreme Court as applied to this regulation.

Rule 4-7.1, in its existing form, is deleted. Existing rule 4-7.2(a) is essentially moved to rule 4-7.1. We accept this change, except we find...